Thursday, November 27, 2014

Today, our nation gives thanks. Wikipedia has interesting information about the roots of Thanksgiving in the US, Canada and other countries.

Six months ago, I did not know if my husband, "Mr. Sprocket" would survive his heart attack. Today, Mr. Sprocket (the head cook at our house) will be fixing an organic turkey, mashed sweet potatoes, string beans and a "no corn," cornbread. I am very thankful that he is doing well, back to work and healthier than he's ever been.

Tuesday, November 25, 2014

This is a synopsis of the preliminary hearing conducted in the Michael Gargiulo case on Monday, June 21, 2010. Since I only started covering the case since 2012, I did not attend the prelim. Over the next two months, I will be posting an abbreviated account of the testimony and evidence presented against Gargiulo. SprocketGargiulo Case QUICK LINKSPreliminary Hearing QUICK LINKS

The parties state their appearances for the record. DDA Marna Miller for the people. Defense attorney Charles L. Linder for the defendant. He is assisted by Abraham C. Linder, law clerk. Also representing Mr. Gargiulo is defense attorney Dale Rubin.

Before the first witness is called, there is subpoenaed record response that was taken care of. Next, the court outlines how the scheduling will go: Day by day, and a full a day as possible. Court will be dark Wednesday afternoon, June 23.

The court asks if there are any other issues. Dale Rubin (who is assigned the penalty phase of the potential trial) tells the court that he will not be present every day. However, he is here to address the issue of the people’s 1101(b). The parties/court will be working off of the amended felony complaint filed November 12, 2009. The court is ready to proceed. The court reviewed the 1101(b) motion. There was no written response to the motion by the defense.

Rubin tells the court that he has been in contact with the DA, but that it has been difficult for him to get a response together. He did not know that some witnesses would be called today. He had asked for additional time to respond. The defense objects to the 1101(b) evidence coming in. Rubin asks the court to look at People vs. King, a 2010 ruling where there are prior uncharged acts in which the defendant denies that they occurred or that he’s involved. Rubin also states that he spent many hours trying to find if there was case law about submitting 1101(b) evidence in a prelim. In his 35 years in practice, Rubin tells the court he’s “... never had it happen where it’s been asked to do it at a prelim.” Rubin argues that the problem is the DA’s burden is just probable cause. Rubin continues to argue several other points. Rubin admits that the defense is not prepared to cross examine these witnesses if they take the stand today. They have not done the necessary investigation into the 1101(b) (uncharged crimes).

DDA Miller responds. She points out that discovery for the 1101(b) was provided to the defense over a year ago. In May, DDA Miller notified the defense she would be presenting the 1101(b) evidence at the preliminary hearing. She filed her motion well in advance of the prelim hearing date and served both counsel on June 9 via email. Although Mr. Rubin states he has been in contact with her, she never received a response from either counsel. “Based on my moving papers and based on the facts and the law as I have stated in my moving papers, this is exactly the type of case that 1101(b) does come in. It does show motive. It does show a common plan or scheme.”

The court asks the people the names of the specific 1101(b) witnesses.

Ashley Green, Dorothy Hass, and Maria Gurrola, a DNA representative from Chicago. The people will also be Prop 115‘ing some of the officers on the scene at that (Chicago) murder. There is a bit more discussion about which witnesses will be Prop 115‘ing.

The court asks, “Why is it necessary to present these witnesses at the preliminary hearing? What’s the purpose? Is it to establish probably cause? Is it to memorialize their testimony or what?”

DDA Miller replies, “Well, I think it’s part and parcel for both the memorialization of their testimony. ..I think their testimony is extremely helpful to the trier of fact, whether it’s you or a jury at the future date. I think it’s very important to hear in terms of context.”

DDA Miller is not sure how much the court wants regarding what they have on the LAPD case, but she feels it’s important for the court to know the events surrounding that case, since there is a time period between the LAPD murder and the LASD murder.

The court asks if there’s anything else from either the people or defense. Mr. Rubin has one last argument to present. Mr. Rubin explains that when he learned that there was going to be 1101(b) evidence presented he immediately contacted DDA Miller. Rubin states, “... I’m sorry. I have a life. I had three graduations and children moving back from college in this time period, beginning of June, very busy. I wanted to get started on it. ... The response that I got was, ‘You’ll get that information when you get the motion.’“

Rubin states that he researched case law to see if this type of evidence could even be admitted at a preliminary hearing. Rubin could not find a case on point, whether this type of evidence is or is not admissible at a prelim. Rubin adds that they did not get the 10 court days notice on the motion.

Judge Johnson rules. ‘I am not aware of any authority that precludes the introduction of 1101(b) evidence at a preliminary hearing, so I will permit it.” The court points out that the admission of this kind of evidence at the prelim is not a binding ruling as to trial, so it’s not a final resolution of the issue for trial. Judge Johnson rules that an adequate showing has been made for some of the proffered evidence for the preliminary hearing. The court then outlines, the specific testimony that will be allowed and what will be excluded. The burglary and murder of Tricia Pacaccio, that’s admitted as to identity, common modus operandi and common motive with counts 5, 3, and 1.

The assault with a taser upon Dorothy Hass from December 2001, not charged, exclude the conduct in part as dissimilar. Not the same kind of motive; not the same kind of modus operandi. It appeared to be some kind of disagreement about taking care of animals. Quite different from the charged crimes. However, admit the defendant’s admission to Dorothy Hass regarding the Ellerin and Pacaccio crimes.

Conduct attributed to the defendant regarding use of a van that is similar to counts 1, 3, and 5.
The stalking and assault upon Maria Gurrola from 2004, only that portion of the evidence regarding the defendant’s use of a van, the defendant being seen in a white van that was similar to one described in counts 1, 3, and 5. Also admit the evidence of the relationship between the defendant and Maria Gurrola by way of background to explain why the defendant was in the vicinity and why she had an eye on him. Things of the fact that they dated each other, that he asked to marry her, that he followed her, that sort of thing. The issue of the defendant breaking into her house and Gurrola getting a protective order, that is not similar.

Admissions that the defendant made about knowing forensics, that he knew how to kill people and cover it up, that if Gurrola tried to leave him, he would make it personal, that can come in. All of that is relevant to counts 1, 3 and 5 as well as the Paccaccio uncharged incident.

Those are the courts tentative rulings. The court offers each side to address his rulings. DDA Miller addresses the 2004 Maria Gurrola, stalking and assault incident. She argues that the defendant, during the Perkin’s Operation, made comments that these women didn’t have protective orders. Judge Johnson replies, “All right.”

Charles Lindner asks, “Is the court inclined to change its mind?” Judge Johnson replies, “Well, it depends on what you say.” Lindner then begins to argue that this evidence should not come in at the prelim.

“With respect to the comments allegedly made by the defendant, these were after he was represented by counsel. He was taken to the EL Monte Jail surreptitiously by sheriffs and put in a cell with a couple of deputy sheriffs pretending to be prisoners; did not receive Miranda. There are 5th and 6th amendment issues of serious substance with the conduct of law enforcement on this particular occasion.”

Lindner continues to argue that the defendant’s 5th amendment rights were violated. “I think the court has to hear the constitutional proffer first as to why this should come in, before it comes in at all. We’re very vehement about obeying the constitution. I would ask the court to keep its former ruling. As far as the defendant being impeached in one of his statements, the defendant isn’t going to be called at this preliminary hearing, so the fact that this woman had a restraining order against him when he said there were no restraining orders against him has no evidentiary weight at all.”

Judge Johnson replies, “All right. Well, the tentative ruling stands; again, excluding the issue concerning Maria Gurrola.” Judge Johnson explains further his ruling on other testimony, stating it’s not really an admission but it’s conduct that he was seen driving a van. Judge Johnson closes this issue by adding, “That’s the ruling. We’ll proceed on that basis. Is it clear to everyone?”

Then Judge Johnson reiterates his previous statement that these rulings are not binding for trial. “I just don’t see that there’s a sufficient showing at this point of the preliminary." Judge Johnson then asks about the Perkin’s Operation and if there would be such evidence presented. DDA Miller informs the court that there will be, and presents the case law, Illinois v. Perkins, and that it allows for this exact kind of situation.

DDA Miller adds, “While defense claims that it’s a violation of his 5th amendment right. Number one, he had only been arrested at that point on the Santa Monica case. The El Monte case and the LAPD case were not filed until much later on. Almost two months later he was arraigned on other additional charges.” DDA Miller asks the court and counsel to look at Illinois v Perkins, as well as People v. Plyer, which references Massiah in situations like this and how it’s offense specific. DDA Miller adds that the seminal case would be Maine v. Moulton.

The court instructs the prosecution to give the defense a list of witnesses that they expect to call the following day by the end of each day. If there are issues of this kind, like the admissibility of a statement, it should be addressed before the witnesses are called on that day.

Lindner tells the court that he and his co counsel Mr. Rubin, need to make a record regarding confrontation. Confrontation is not a preliminary hearing right. The court ruled on that previously when it denied the defense the ability to find witnesses. The defense has had no opportunity whatsoever to see any of these witnesses to conduct investigations.

Lindner continues, “My fear, and I’m anticipating this, in case this case eventually does reach the U.S. Supreme Court, is that the justices will consider our essentially ineffectual cross-examination at this stage to have supplied the opportunity to cross-examine, when in fact we were not allowed by the people or the ... and because of the court’s ruling, to investigate the very issues on which we have to cross examine.” Lindner wanted to preserve that issue.

Lindner moves to exclude witnesses from being inside the courtroom. Potential witnesses are excluded.

Monday, November 24, 2014

In mid October 2014, right before the start of the Jodi Arias penalty phase retrial, former CourtTv/TruTv reporter and legal analyst Beth Karas launched a new website, KarasOnCrime.com, a monthly subscription based website.

On her new site, Karas explains why:

For the duration of Jodi Arias’s penalty phase retrial in Phoenix,
Arizona, I’ll bring you updates and analysis through videos on this
site. Why did I launch this? Because the judge is not allowing the trial
to be televised live, and many of you who followed last year’s trial
want to know the details of the retrial and how it ends. I was there
every day last year, and I, too, want to see the final chapter.

Here’s the plan: I will file a video report on the BK Live link on
the site to talk about the entire day’s events—who testified, reaction
from the players and jurors, and other observations. I’ll also answer
your questions.

The access fee to KarasOnCrime is $5.99 per month. I believe this is the exact amount that CourtTv offered, back in 2004-2007, for online access to their accumulated video library of trial coverage.

There are several other journalists who are live-tweeting the Arias penalty phase retrial, but they don't bring to the table the experience and insight that Karas provides in her live blogging and her nightly wrap-ups. T&T co-contributor ritanita tells me, "Beth's site is excellent."

I don't have any personal insight, but I would not be surprised if there is a book in Beth's future. A book from Beth, detailing her experience as an Assistant District Attorney in New York City, as well as the many high profile trials she attended and reported on would be a fantastic read. I hope my wishful thinking comes true.

Friday, November 7, 2014

November 7, 2014
Michael Gargiulo relinquishes his pro per status and standby counsel Charles Lindner has been reinstated as attorney of record.

Next pretrial hearing is January 9th, 2015.

I'll have an update on the proceedings later tonight.

UPDATE 11/10/14 November 7, 2014
There are three cases I'm following that have hearings this morning. Gargiulo, Brown and Woodward. I decide to cover Gargiulo since Brown's hearing is just a status conference and I haven't been to any Woodward hearings since the prelim.

I get to my regular parking lot around 8:10 AM. I keep the car running for another five minutes to charge up my cell phone. While I’m sitting there, Cameron Brown’s defense attorney, Aron Laub, parks his vehicle beside mine. After he exits his car, he paces a bit in the parking lot while on a phone call. When he does see me, he smiles and waves. He then takes off for the courthouse will his rolling cart. I leave a few minutes later.

I finally catch up to him at the corner of Temple and Broadway. Since I decided I’m going to cover Gargiulo today, I told him that I would miss his hearing. Laub tells me that an associate will be standing in for him since he is in trial in Dept. 102. I tell him that I’m also stopping by 102 first, to drop off a bakery gift for Judge Marcus and his staff.

The Ninth Floor
Up on the ninth floor, I see defense investigator Chris Nicely, already here in his usual spot. I stop to say hello and look around the floor to see who else is here. Cameron Brown’s wife Patty is here. I tell her I saw Mr. Laub earlier and what he communicated to me about his schedule. Laub also said that nothing would happen today in her husband's case, except setting a return date.

In the center of the hallway, I see Janet Levine (and I believe Kelly T. Currie) the lead defense attorney’s for Joshua Woodward. Not long afterwards, DDA’s Habib Balian and Marguerite Rizzo who are prosecuting the case, are deep in conversation with them.

I walk down to the other end of the hallway and wait outside Dept. 102 until the bailiff opens the door. I hand my box to the bailiff and head back to the other end of the hall. Walking back, I see defendant Joshua Woodward sitting on a bench in-between two suited gentlemen, obviously attorneys. I try to catch his eye but he’s totally engrossed in his cell phone. I pass DDA Balian and DDA Rizzo again. I really wanted to stop and congratulate Ms. Rizzo on another fantastic Forensic Science Conference back on September 11, but she and Balian were still engaged with Woodward's counsel.

At Dept. 108, DDA's Daniel Akemon and Garrett Dameron arrive. They greet me and Nicely. Just as we are entering the courtroom, DDA Craig Hum is beside the door to Dept. 107. He asks me if I've seen Mr. Laub. I tell him he's in trial in Dept. 102. Hum replies, "He's not there." Unfortunately, I don't have any additional information on Mr. Laub's whereabouts.

As far as attending Brown's hearing, the DA's calendar indicated that Dept. 107 would have a sentencing hearing, but I don't know if that would happen before or after Brown's hearing. I'm hoping that the sentencing would be first, Brown would be second and then I could attend the Brown hearing. (The next hearing in the Cameron Brown case is November 24, 2014. Sprocket)

Defense attorney Charles Lindner is wheeled in by his son, (Abe?). In the gallery, Lindner and Nicely chat for a moment. I’m not sure if I hear correctly or who is being referenced, but I believe it’s Lindner who says, “They moved him in with four people.”

Judge Ohta is at the bench. Lindner and Judge Ohta are have an engaging chat about “model citizens” and what that might be.

Judge Ohta directs his deputy to bring Gargiulo out. There is a bit of a wait while a Sargent Deputy arrives.

Lindner introduces his son to Judge Ohta. Lindner tells the court that his son [has], “...worked for me for eight years ... worked on several murder cases...” Lindner shares with the court where his son went to school and where he is thinking about attending law school. I believe Judge Ohta responds, “If you can get into Irvine, that would be great. ... That’s a good school.” The discussion then moves onto what I often hear judges talk about with counsel in the well, recent appellate court rulings. Judge Ohta brings up the Sixth Circuit Court of Appeals decision on gay marriage, and discusses the merits of the majority decision.

Two casually dressed young men enter Dept. 108 and sit in the third bench row. I don’t know if they are reporters, or interested parties to Judge Ohta’s current case, that may have already gone to the jury. Judge Ohta and Lindner now discuss rulings by the Supreme Court. Another prosecutor enters the well and begins chatting with DDA's Akemon and Dameron. A Latino family of four enters and sits in the back row.Gargiulo Hearing
Gargiulo is brought out. He sits in the end chair at the defense table. He is still completely clean shaven and bald. Lindner greets his client by asking, “How are you this morning?” Lindner and his son Abe switch positions so that Lindner can speak directly to Gargiulo. Investigator Nicely moves up from the gallery to sit a chair along the low wall of the well. More people arrive and sit in the gallery.

Gargiulo speaks to the bailiff. He hands him some papers that appear to be hand written. The bailiff hands them to the clerk.

Gargiulo tells the court, “I just filed a motion ... relinquishing my pro per status ..." The court reads Gargiulo’s motion. It appears to be the lined pages of paper Gargiulo handed to the bailiff earlier. After reviewing what Gargiulo filed, the court responds, “Before I [discuss?] ruling on this request ... Are you making your [request?] ... contingent on your being able to keep your books and discovery? ... And for [defense? defendant?] to be able to keep discovery and legal books?”

The court asks again if relinquishing his pro per status is contingent upon those other requests. Gargiulo responds, “No, it’s not. ... I’m relinquishing my status. But it’s an updated ....” I miss getting the rest of Gargiulo’s explanation.

Judge Ohta responds, “But let's separate these two things. ... You’ve been pro per, and you understand what it is to be pro per. ... you made ..." I believe Gargiulo interrupts the court and states that at the time he chose the pro per route, it wasn’t made clear to him that he could lose privileges. He goes on to state that, “Because the court has hampered my ability to represent myself. ... The Sheriff’s violated [my rights]....”

Gargiulo mentions a few other things that he feels have been a violation of his rights. Judge Ohta interrupts him and states, “We’re not going to get into that [again?]. ... I’ve gone over it several times.”

Lindner asks the court if he may speak to Gargiulo. It’s my interpretation that Lindner explains to Gargiulo in simple terms what his choices are. The court continues, “If you feel, Mr. Gargiulo that there’s some [?] ... a violation has occurred that’s impeded your right to self represent in this case ... [it] makes sense to me for you to file a motion. ... I’m not going to sit back and let you just accuse me [the court]...” Judge Ohta tells him to communicate with the Sheriff’s and file a motion.

Gargiulo replies, “I’ve tried that a few times and there’s no going back and forth. ... I’m fighting for my life. ... I have no access [to legal research/law library]....”

Gargiulo replies, “That was written six months ago.” Judge Ohta has an interesting look on his face and tone in his voice when he asks, “So you held back for six months and delayed this for six months?” Gargiulo quickly replies, “But that’s because I was working on my 995 motion.”

(I may be wrong, but I thought at the last hearing Gargiulo said he was working on the motion he filed 11/7, and then he told the court he was going to work on the 995 motion. Sprocket.)

Lindner speaks to the prior issues of the court ruling regarding the pro per status and prior Faretta motion.

Judge Ohta, explains again to Gargiulo that, “It’s in your realm of domain as a pro per to litigate that. If you think [there's been a violation of your rights]...” Gargiulo insists that he has no access to do something, to do the research to file that type of motion. Judge Ohta replies, “You acknowledge you have the right to put forward a complaint ... but you are putting that aside?”

Judge Ohta states for the record that Gargiulo would like to relinquish his pro per status. Gargiulo’s request is granted. Lindner is reassigned as Gargiulo’s attorney.

Lindner addresses the court and talks about discovery since he was removed from the case. “Apparently the amount of discovery ... is five-fold ... since [I was] relieved two and a half years ago. ... 30,000 pages. ... It’s going to take me time to re-prepare.”

The court asks the prosecution if they have been updating Mr. Lindner as to discovery. DDA Akemon responds, “I have your honor. A hard drive of 29,000+ pages, ... except for about 20 to 30 pages.” Lindner tells the court, “I was told by the DA, ...[I] needed to purchase a two-terabyte hard drive.”

Counsel and the court then discuss what a terabyte is, since DDA Akemon adds, “Not sure what a terabyte is.” Someone adds that a terabyte is one-thousand gigabytes.

There is then a discussion as to whether it makes sense to come back in December or to come back next year. Lindner’s phone goes off and he apologizes to the court.

The second week of January 2015, specifically January 9th is selected. Gargiulo, Lindner and the prosecution team agree to the date. The court informs Lindner that the case is working under a general time waiver. But that can be changed if so needed. Lindner tells the court that at a prior court hearing, Gargiulo got his foot caught in an elevator and needs to see a podiatrist.

The next issue that’s discussed is whether or not Gargiulo will for the time being, be able to keep his court materials. Lindner is asking for a court minute order for Gargiulo, at least until January 9, be able to keep his trial documents. While Lindner gets up to speed on the case, it would make things easier if Gargiulo had access to his court documents. The court replies, “I don’t see a need to take it away from him [at this point].” Judge Ohta asks the prosecution, “If you see a need that he not have it...” DDA Akemon and Lindner confer. Nicely gets up to speak to Gargiulo. Afterwards, Lindner speaks to the court about the DA, but he mistakenly calls DDA Akemon, John Lewin. Someone jokingly says something about DDA Akemon and DDA Lewin looking alike, and it being a slip of the tongue. (They don’t look anything like to me. Sprocket.) Judge Ohta responds, “We all have slips of the tongue.”

It's either Lindner or Gargiulo who states that Gargiulo currently has access to 14 boxes of books and papers. There’s more discussion as to whether or not Gargiulo, since he relinquished his pro per status, has a right to keep his papers until January 9. I believe the prosecution states they don’t believe he’s entitled to them. The issue isn’t really whether the DA agrees, it’s what the Sheriff’s will do, to ensure the safety of the jail. The Sheriff could just take his documents and books away from him. Lindner tells the court that, “I’d like to start over with Mr. Gargiulo.”

DDA Akemon tells the court that he believes there are two issues. “Mr. Gargiulo is in possession of attorney work product. ... there needs to be [?] ... a need to protect that.” The court replies, “I can’t control [this] issue in the jail....”

Judge Ohta replies, “You can ask me to issue a temporary order.” Judge Ohta asks his clerk to do that by “minute order.” The parties discuss how the minute order will be worded. Lindner asks that it state that all papers be preserved until January 9.

Gargiulo addresses the court. He mentions that the documents could be put on a hard drive that’s just plugged in, and then he would be able to access them. I’m not sure exactly what he’s talking about. Judge Ohta rules, “For now, ... issue an [interim] order [that] your documents not be disturbed until January 9.” And that’s it. Nothing on the case until next year.

When I exit Dept. 102, I peek into Dept. 107 to see if the sentencing hearing was still on. The courtroom is empty so I missed the sentencing and Brown's pretrial hearing. I then stop by and peek into Dept. 103, where Woodward's pretrial hearing was held, and that courtroom is empty, too.

I checked with the Superior Court's Public Information Office. Woodward's next court date is January 30, 2015.

Tuesday, November 4, 2014

We enjoy great freedoms in the United States, and one of those is the ability to vote who we want to represent us in city, county, state, and national offices. We are also able to vote for county and state judges. Get to the polls and exercise your right to vote today.

Short Synopsis:
Mary O'Callaghan, an LAPD officer with over 18 years on the force and a former marine has been charged with assault under color of authority.

Media reports indicate the victim, Alesia Thomas abandoned her children ages 12 and 3 years old at a police station. Officers tracked Thomas back to her home and arrested her for child abandonment. One media report indicated the children told police that their grandmother would be picking them up.

O'Callaghan is alledged to have kicked a handcuffed Thomas seven times in her lower body area while in the backseat of a police car before she lost conciousness. Thomas died in police custody. The autopsy revealed Thomas had cocaine in her system. The cause of death was ruled "undetermined." The coroner could not rule out the assault as a factor in Thomas' death.

The Police Commission, a civilian oversight board, reviewed the July 22,
2012, incident and issued a report concluding that O'Callaghan used
unreasonable force on Alesia Thomas, 35, when she was restrained and in
the backseat of a cruiser.

CONTRIBUTORS

T&T Readers To Date:

CORRECTIONS

T&T is always happy to make a correction, if warranted, upon request. Correction requests or demands received from a lawyer will be referred to our counsel and will, unavoidably, slow down the correction review process. We consider corrections to be a matter of journalistic integrity and not legal compulsion.

DISCLAIMER:

The expressions in this blog are our opinions or the opinions of our featured writers. Please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following the blog articles are the opinions and sole property of the commenter's and do not necessarily reflect those of the site owners.